Not for Publication

                           UNITED STATES COURT OF APPEALS

                                FOR THE NINTH CIRCUIT

         * * * * * * * * * * * * * * * * * *
         THOMAS MARTIN THOMPSON,           *
                                           *    Nos. 95-99014
              Petitioner-Appellant-        *         95-99015
              Cross-Appellee,              *
                                           *    D.C. No. CV-89-3630-RG
              v.                           *
         ARTHUR CALDERON, Warden of the    *
         California State Prison at San    *
         Quentin,                          *
                                           *    ORDER
              Respondent-Appellee-         *
              Cross-Appellant.             *
         * * * * * * * * * * * * * * * * * *

                                Filed August 8, 1997

         KOZINSKI, Circuit Judge:

              The dissent filed on August 3, 1997, is amended.  The amended

         dissent, attached herewith, is ordered filed.

         Thompson v. Calderon, Nos. 95-99014, 95-99015

         KOZINSKI, Circuit Judge, with whom Circuit Judge T.G. NELSON
         joins, dissenting.


              I agree with this much of the majority's claim that there are

         exceptional circumstances in this case:  Not every day does a

         court of appeals recall the mandate in order to reconsider an ar-

         gument that has already been presented to--and rejected by--the

         Supreme Court in a petition for a writ of certiorari.  So far as I

         know, this is a first anywhere, anytime.  What happened here,

         then, to justify such an extraordinary departure from orderly pro-

         cedure?  The majority suggests that "our normal en banc process

         did not function in the intended manner."  Maj. op. at 4.  In

         fact, nothing at all unusual happened; the process operated just

         as it's supposed to.

              Here is how it all works:  All suggestions for rehearing en

         banc, whether or not bundled with a petition for panel rehearing,

         are first considered by the panel that issued the opinion.  See

         Circuit Advisory Committee Note (4) to Rules 35-1 to 35-3.   A

         judge who has doubts about the panel's opinion must await the

         panel's action before calling for a vote on whether to take the

         case en banc, since the panel might solve the problem by amending

         the opinion.  In order to be notified when the panel has acted, an

         off-panel judge must ask the panel for a 5.4(b) notice, named af-

         ter our General Order of that number.  The 5.4(b) notice, when

         issued by the panel, informs the full court of the panel's action
                                                                 page 2    

         and triggers the time for any judge still dissatisfied with the

         opinion to make an en banc call; the call must be made within 14

         days of the issuance of the 5.4(b) notice.  See G.O. 5.4(b)(2).

         These are the procedures applicable to all cases and every one of

         our judges is familiar with them; we use them every day.

              In this case, an off-panel judge (Judge X) made a request for

         a 5.4(b) notice on September 27, 1996, and the panel duly issued

         that notice on January 17, 1997.1/  In that notice, the panel in-

         formed the court that it was planning to make some minor changes

         to the opinion and otherwise to deny the petition.  That memo was

         circulated, as is customary, by way of our internal e-mail system.

         Again, under our General Orders, if no judge calls for an en banc

         vote within 14 days of the 5.4(b) notice, the suggestion for re-

         hearing en banc is deemed rejected and the panel is free to file

         an order to that effect.  Adding 14 days to January 17 brings us

         to January 31; no en banc call was made as of that date.  In an

         abundance of caution, the author of the opinion inquired of the

         judge charged with coordinating the en banc process and was ad-

         vised that January 31 was, indeed, the last date to make an en

         banc call.  Over a month later, on March 6, the order denying re-

         hearing was filed with a revised opinion containing the small

         amendments mentioned by the panel in its 5.4(b) notice.  
         1/  I regret having to delve into internal court communications,
         especially as I do not believe any of this matters at all.  See
         pp. 8-10 infra.  However, as the majority has opened the door by
         giving what I see as an inaccurate description of what happened, I
         feel constrained to set the record straight.  I believe this is
         especially appropriate since the parties do not have access to
         these facts and thus have no way of challenging or defending the
         majority's assertions.
                                                                 page 3    

              Six days later, on March 12, another off-panel judge (Judge

         Y) wrote to the panel asking that it withdraw the order denying

         rehearing in order to give that judge an opportunity to make an en

         banc call.  The judge in question explained as follows the failure

         to make a timely call:

                   I . . . attempted to determine why I had not become

              aware of your decision earlier.  The answer appears to

              be that my chambers systems malfunctioned and the opin-

              ion simply fell between the cracks.  A partial explana-

              tion, but not excuse, is that the disposition was circu-

              lated shortly before a law clerk transition and that the

              old and new law clerks assigned to the case failed to


              The following day, March 13, Judge X, who had originally re-

         quested the 5.4(b) notice, seconded the request.  Four days after

         that, Judge X circulated a second memo noting that a timely 5.4(b)

         request had been made.  "Was a 5.4(b) notice circulated?  Did I

         miss it?", inquired Judge X. 

              The author of the opinion responded, noting the mandate had

         been stayed to allow petitioner to seek certiorari.  On the ques-

         tion whether an en banc call could be made, the authoring judge

         stated as follows:

                   On Monday, March 17, 1997, I sent you copies of

              papers from my file that demonstrate that you both

              had adequate notice of the panel's intent to amend

              the opinion and a 5.4(b) notice.  The notice was 

              sent to Associates on January 17, 1997.
                                                                 page 4    

         The memo also noted that "[i]n compliance with our general orders,

         the en banc coordinator set the date of January 31, 1997 as the

         last date on which a timely call for en banc could be made" and

         confirmed that "the panel was under no further obligation to do

         anything in response to [the] request for a 5.4(b) notice dated

         September 27, 1996."

              Neither Judge X nor Judge Y responded by claiming they did

         not receive the 5.4(b) notice.   Neither argued at the time that

         they should be allowed to make a belated en banc call because of

         excusable neglect.2/  Neither judge notified the full court that

         he felt aggrieved by the panel's unwillingness to waive the dead-

         line as a matter of comity.  In fact, this whole controversy--the

         claim that there was some compromise of the court's processes--did

         not come to the attention of the full court until after the Su-

         preme Court denied certiorari, even though issuance of the mandate

         was safely stayed that entire time and any adjustment could have

         2/   While our General Orders provide time limits for taking cer-
         tain actions, including the making of an en banc call, they are
         not self-executing.  A judge who disagrees with the application of
         the General Orders can challenge the action and, ultimately, put
         the matter to a vote of the whole court.  In this case, nothing
         precluded Judges X or Y from calling for en banc late.  Had such a
         call been made, it would have been up to the en banc coordinator
         to determine whether it was timely; the en banc coordinator has
         traditionally exercised authority to waive certain time limits for
         excusable neglect and the like.  Had the en banc coordinator ruled
         the call untimely, the aggrieved judges would have had two rem-
         edies:  They could have appealed the ruling to the full court,
         arguing for a waiver on the basis of excusable neglect or col-
         legiality or whatever, or they could have asked for a suspension
         of the rules pursuant to G.O. 11.11.  The latter might have been
         harder than the former, but they could have done either or both.
         They did neither.  
                                                                 page 5    

         been accomplished without the extraordinary step of recalling the


              This recitation of events should make clear that there was

         nothing unusual about what happened in this case.  The panel fol-

         lowed our procedures scrupulously; the en banc coordinator made an

         unremarkable ruling; there was no breakdown of our internal com-

         munications system.  Two judges made mistakes--precisely the sort

         of mistakes lawyers make all the time and as to which we routinely

         3/  Judge Reinhardt purports to dispute my account of what tran-
         spired.  He is mistaken.  As I state in the text, the full court
         was notified in March that Judges X and Y had missed the deadline.
         See p. 7 infra ("Since [Judge X's memo] was written only 7 days
         after the amended opinion was filed, nothing prevented Judge X,
         Judge Y or any other judge (we were all copied in on the memo) . .
         . .") (emphasis added).  What no one knew until July, is that
         Judges X or Y thought this reflected some "procedural misunder-
         standings" or that "our en banc process did not function in the
         intended manner."  Maj. op. at 4.  Indeed, in his memo of March 12
         Judge Y takes the entirely contrary position:  "At this point all
         I can do is ask whether the panel might be willing to recall the
         mandate to permit me to make a prompt though belated call.  Under
         our rules, the decision is clearly yours." (emphasis added).

              Judge Reinhardt also seems to dispute my assertion that the
         full court was not notified of the controversy until after the
         Supreme court denied certiorari.  He says:  "In addition, before
         our mandate was spread in the district court, two other judges
         also requested that a belated en banc call be entertained.  Again,
         the entire court was notified immediately."  Reinhardt concurrence
         at 2.  Here is what happened:

              June 2, 1997   Supreme Court denies certiorari.
              June 11, 1997  Ninth Circuit issues mandate.
              July 7, 1997   Judge Z calls for belated en banc.

         Judge Z's memo of July 7, almost a month after the mandate was
         issued, was the first that the court at large became aware that
         "there were procedural misunderstandings" or that "our en banc
         process did not function in the intended manner."  Judge
         Reinhardt's assertion that "the entire court was notified im-
         mediately" is contrary to fact.
                                                                 page 6    

         hold they do not amount to excusable neglect.  See, e.g., Commit-

         tee for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 824 (9th

         Cir. 1996), ("inadvertence, ignorance of the rules, or mistakes

         construing the rules do not usually constitute 'excusable' ne-

         glect," quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

         Partnership, 507 U.S. 380, 392 (1993)).  At the same time, 35

         other judges who were entitled to make an en banc call had re-

         viewed the slip opinion and the suggestion for en banc rehearing

         and were satisfied that the result did not meet the rigorous stan-

         dards for en banc review.  Small wonder.  While the majority now

         comes to a different conclusion than the three-judge panel, it

         does not indicate where the panel opinion was in conflict with the

         law of the circuit, the law of another circuit or the Supreme

         Court.  In fact, the difference between the earlier opinion and

         this one involves only the application of law to facts, quintes-

         sentially the kind of case where en banc review is routinely re-

         jected.  Nor is this a case of transcending importance, unless one

         views every death case as exceptional.  While the panel might have

         been more accommodating to Judges X and Y, the action is not un-

         precedented, particularly when the request was presented six weeks

         late and without any compelling reason for the delay.4/

              The majority also seems to suggest that Judges X and Y were

         misled because they were told they could not call for en banc,

         4/  The majority's assertion that "there has been no occasion in
         the past several decades in which this court has made a similar
         error in any type of case," maj. op. 8, is not accurate.  It's
         happened to me more than once.  
                                                                 page 7    

         while the filing of an amended opinion in fact re-opened the pe-

         riod for making an en banc call.  Maj. op. at 6 & n.2.  The short

         answer is that they were not misled.  As the memo from the author-

         ing judge quoted above makes clear, the en banc coordinator's rul-

         ing only held that the panel was "under no further obligation to

         do anything in response to Judge [X]'s request for a 5.4(b) notice

         dated September 27, 1997."  Nothing and no one dissuaded Judges X

         or Y, or both together, from making a sua sponte en banc call on

         the basis of the amended opinion.  No one addressed the point at


              But maybe Judges X and/or Y were not aware of the possibility

         they could call for en banc review on the basis of the amended

         opinion, and were misled by the failure of the panel and the en

         banc coordinator to offer them this alternative.  Not so.  Judge X

         in the memo of March 13, 1997, said as follows:  "I wonder whether

         in any event an amended opinion triggers a new 5.4(b) period."

         Since this was written only 7 days after the amended opinion had

         been filed, nothing prevented Judge X, Judge Y or any other judge

         (we were all copied in on the memo) from seizing this thought and

         asking for a 5.4(b) notice right there and then.  The judge in

         question would not even have had to be sure that it would work;

         the request could have been made and the matter "litigated" before

         the en banc coordinator and the full court.  See n.2 supra.  Once

         again, the Judges Appellant had a full and complete remedy for the

         supposed breakdown in our processes, but did nothing.

              Where then is the beef?  Where the extraordinary circum-

         stances that empower us to exercise the seldom-used authority to
                                                                 page 8    

         recall the mandate?  Where the affront to "the integrity of our

         processes" the majority complains about?  Maj. op. at 3, 4.  It

         just doesn't exist.

              But let's assume, contrary to fact, that Judges X and Y were

         somehow hoodwinked out of their right to make an en banc call.  It

         does not follow that this is something the petitioner can complain

         about.  It has long been established that "[t]he function of en

         banc hearings is not to review alleged errors for the benefit of

         losing litigants,"  United States v. Rosciano, 499 F.2d 173, 174

         (7th Cir. 1974) (en banc), citing Western Pacific R.R. Corp. v.

         Western Pacific R.R. Co., 345 U.S. 247, 256-59 (1953).  En banc

         review, rather, is a means for a multi-judge court that sits in

         panels of less than the entire number to bring consistency within

         its law.  See Western Pacific R.R., 345 U.S. at 260 n.20.  Thus,

         the majority commits egregious error when it suggests that en banc

         review is "a part of the full and fair procedure our court affords

         in connection with initial habeas petitions."  Maj. op. at 7.  A

         cursory review of the most elemental authorities on this point

         discloses this is just not so.  The statute which grants power to

         the court to sit en banc gives the parties no rights whatsoever to

         require en banc rehearing, or even a consideration by the full

         court of the suggestion.  See, e.g., Western Pacific R.R., passim;

         Notes of Advisory Committee on Appellate Rules following Fed. R.

         App. P. 35 ("The provision that a vote will not be taken as a re-

         sult of the suggestion of the party unless requested by a judge of

         the court in regular active service or by a judge who was a member
                                                                 page 9    

         of the panel that rendered a decision sought to be reheard is in-

         tended to make it clear that a suggestion of a party as such does

         not require any action by the court.").

              The implications of this body of law for our case are rather

         clear.  Since the en banc process gives no rights to the parties,

         a breakdown in the process--even if there was one--creates no

         problem of extraordinary dimensions.  If the en banc call is

         missed for whatever reason, the error can be corrected in a future

         case where the problem again manifests itself.  Any problem worthy

         of en banc consideration will perforce appear again and again;

         missing an en banc call in a single case does not terminate for-

         ever the opportunity of judges troubled by the error to raise the

         issue.  Thus, even were I to accept the majority's premises that

         something untoward happened here, I cannot see how this supports

         the extraordinary remedy of recalling the mandate.  

              That this is a capital case does not change the calculus.

         The stakes are higher in a death case, to be sure, but the stakes

         for a particular litigant play no legitimate role in the en banc

         process.  Nor can we say that "death is different" and therefore

         that it is appropriate to impose more layers of procedural safe-

         guards.  The Supreme Court has already imposed quite a few layers

         of additional safeguards with respect to death cases.  There is no

         indication anywhere in the Court's opinions that we are free to

         add to these safeguards by imposing an especially rigorous en banc

         review process.  Indeed given that 28 U.S.C.   46(c) and the 1967

         Federal Rules of Appellate Procedure Amendments all were promul-

         gated prior to Furman v. Georgia, 408 U.S. 238 (1972), it would
                                                                page 10    

         seem quite strange to extract from them special procedures pecu-

         liarly applicable to death cases.

              Ultimately, then, the majority's decision to recall the man-

         date must stand or fall on the other factors it cites in support

         of its action, such as Thompson's claim of actual innocence, the

         supposed errors in the panel's decision and the serious conse-

         quences to the petitioner.  As Judge Hall points out, there are

         few petitioners who can't make out a colorable claim that some or

         all of these factors are present, and we will be hard pressed to

         distinguish them from Thompson's case.  See Hall dissent at 5.

         Given the difficulties imposed in filing second habeas petitions

         under AEDPA, we can expect a flood of requests to "recall the man-



              While I would not reach the merits of the first habeas pe-

         tition, I comment briefly on the portion of Judge Fletcher's opin-

         ion dealing with prosecutorial misconduct.  Fletcher op. Part III.

         Because that portion of the opinion does not command a majority,

         it is more in the nature of ruminations by some of our judges.

         See also Tashima concurrence.  As I find this issue troubling, I

         contribute a few random thoughts of my own.  

              To begin with, I do not agree with Judge Fletcher's broad

         statement that "it is well established that when no new signifi-

         cant evidence comes to light a prosecutor cannot, in order to con-

         vict two defendants at separate trials, offer inconsistent theo-

         ries and facts regarding the same crime."  Id. at 31.  There is,
                                                                page 11    

         in fact, a long line of cases that says, if only by way of dicta,
                                                                page 12    

         that judicial estoppel will not apply against the government in

         criminal cases.  See, e.g., Nichols v. Scott, 69 F.3d 1255, 1272

         (5th Cir. 1995); United States v. McCaskey, 9 F.3d 368, 378 (5th

         Cir. 1993); United States v. Kattar, 840 F.2d 118, 129-30 n.7 (1st

         Cir. 1988) (all noting that judicial estoppel has never been ap-

         plied against the government in a criminal case).  The matter is

         thus far from settled, much less "well established." 

              That said, there is surely something troubling about having

         the same sovereign, particularly acting through the same prosecu-

         tor, urge upon two juries a conviction of both A and B, when it is

         clear that the crime was committed by either A or B.  To begin

         with, it raises the suspicion that the prosecutor may have pre-

         sented testimony he knows, or has reason to believe, is false.  If

         that be the case, the breach in prosecutorial ethics consists of

         putting on the tainted testimony, not in pursuing the inconsistent

         verdicts.  But it is impossible to make judgments about what the

         prosecutor knew or should have known at our level, as Judge

         Tashima points out.  See Tashima concurrence at 2; but cf.

         Fletcher op. at 25-26 (finding prosecutor's characterization of

         testimony "patently untrue").  Thus, if the petitioner makes a

         prima facie case that the prosecutor knowingly presented false

         evidence, the matter must be resolved at an evidentiary hearing.  

              But, as Judge Kleinfeld points out, prosecutors are not omni-

         scient.  See Kleinfeld dissent at 9.  They may be confronted with

         witnesses who present mutually inconsistent versions of what hap-

         pened, and there may be no way of knowing which version--if any--

         is true.  Is the prosecutor then precluded from presenting either
                                                                page 13    

         case to the jury?  Must he pick one based on his intuition?  I

         believe not.  A prosecutor, like any other lawyer, is entitled to

         retain skepticism about the evidence he presents and trust the

         jury to make the right judgment.  After all, the guarantee of due

         process encompasses a fair trial before a fair judge and jury; the

         right to a lawyer and to exculpatory evidence available to the

         prosecution; and the right not to have the prosecutor lie to the

         jury.  But I cannot see that it encompasses the right to have a

         prosecutor who is convinced of the defendant's guilt.  We trust

         the adversary process, the good sense of jurors, the presumption

         of innocence and the prosecution's heavy burden of proof to ensure

         a verdict that is fair to the defendant.  If the system works as

         it should, A and B both may be acquitted, but in no event should

         more than one of them be convicted.  

              Must we be troubled, however, where the process does not work

         well--where both A and B get convicted, despite the best efforts

         of everyone involved?  I believe so.  If A and B cannot both be

         guilty, we then know that one innocent person has been convicted.

         Whether this rises to the level of a due process violation is

         close to the question the Supreme Court posed in Herrera v. Col-

         lins, 506 U.S. 390 (1993):  Is there a federal constitutional

         right not just to fair process, but also to a correct result?

         While the Supreme Court has not yet answered this question, the

         better view seems to be that the state has no right to execute an

         innocent man, however fairly it has obtained the conviction.  In

         the case of mutually inconsistent verdicts, which I am not sure is

         the case here, I believe that the state is required to take the
                                                                page 14    

         necessary steps to set aside or modify at least one of the ver-

         dicts.  While the authority for this position is far from iron-

         clad, it is nonetheless compelling. 

              I start with Durley v. Mayo, 351 U.S. 277 (1956), where the

         Court granted certiorari to determine whether due process was of-

         fended by a conviction which was alleged to rest on perjured tes-

         timony, but the prosecutor had not been aware of the perjury at

         trial.  The Court dismissed for lack of jurisdiction, but four

         Justices (Douglas, J., joined by Warren, C.J. and Black and Clark,

         JJ.) would have held that it is a denial of due process for the

         state to retain a conviction it later discovers was based on per-

         jury.  The Second Circuit in Sanders v. Sullivan, 863 F.2d 218 (2d

         Cir. 1988) (Kaufman, J.) took the same view.

              Writing for himself and Justice Ginsburg, Justice Stevens

         relied on Durley in arguing that a stay should be granted in Ja-

         cobs v. Scott, 115. S. Ct. 711 (1995).  (Justice Breyer would also

         have issued a stay.)  Jacobs had been convicted of capital murder,

         and the state had then tried and convicted Jacobs's sister, based

         on Jacobs's own testimony.  At the sister's trial, the prosecutor

         had argued that he now believed Jacobs had told the truth and it

         was the sister who killed the victim.  Nevertheless, Texas in-

         sisted on executing Jacobs, and eventually did.  Justice Stevens's

         dissent argues, like Judge Fletcher here, that the prosecutor com-

         mitted misconduct at trial in presenting inconsistent theories.

         The facts in Jacobs are more compelling than in our case, but they

         raise the same basic issues.  Whether or not one agrees with Jus-

         tice Stevens and the judges joining Part III of Judge Fletcher's
                                                                page 15    

         opinion that the prosecutor committed misconduct at trial by

         pressing inconsistent theories, it still seems mighty troubling

         for the state to take a prisoner's life after having publicly an-

         nounced that it believes him to be innocent.  I, however, would

         treat it as a denial of substantive due process rather than pros-

         ecutorial misconduct.

              Which brings me to a final thought:  Whatever the Supreme

         Court ultimately decides due process requires, it is unseemly for

         the state to act as it did in Jacobs and, perhaps, in our case as

         well.  Whether or not the United States Constitution allows them

         to argue inconsistent theories to different juries, it surely does

         not inspire public confidence in our criminal justice system for

         prosecutors to leave themselves open to charges of manipulation.

         The danger is particularly grave in capital cases, where the ma-

         nipulation could well cause the execution of an innocent person.

         That is a calamity none of us should contemplate lightly.  
 the end